Wednesday, January 30, 2019

Can you trademark that color when branding your business? ... why yes! ...here is some background info..

We all know the Tiffany blue, the Hermés orange, the T-mobile magenta, the UPS brown, the STARBUCKS green. Or how about companies that use dual colors like Pepsi, John Deere, FedEx, Subway, you get the idea. Colors can get so embedded in a company's DNA, that you forever associate that color with that specific brand. All the companies mentioned above, have all trademarked their colors and rightly so - giving them protection from competitors who decide to infringe on the "equity" that the color has built over the years. However, the law also allows the use of that color to be used in different industries. You can use Tiffany Blue if you want to start a skincare line. And by that same token,  Coca Cola cannot sue Target over the color red.




I am sure Tiffany&Co would never allow Cartier to get away with that. Nor would the law.


When you are deciding on a color, do your due diligence. Seek out and find if there is someone out there within your industry who is using that same color. How did they use it? For how long?  This is what Fish and Richardson, a leading global patent and intellectual property litigation firm, had to say on the matter..."...applicants who wish to register a color mark or any other nontraditional mark would be wise to take the time to develop evidence of acquired distinctiveness before submitting the application, and claim acquired distinctiveness when asked to do so by the Board. Evidence of distinctiveness includes sales data, widespread advertising, unsolicited media coverage, general public recognition for the mark, and “look for” advertising, where the company directs consumers to “look for the color” or other trade dress at issue.  
Distinctiveness is the threshold for any trademark registration.

So your color options are literally endless. Just do your due diligence. 




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